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ELCAllowedELC suit (Kisumu) with Notice of Motion dated 24th June 2016; consolidation with Kisumu ELC No. 70 of 2015· [2017] KEELC 859 (KLR)

James Odongo Sunga v Gilbert Apiyo Orengo [2017] KEELC 859 (KLR)

Environment and Land Court
15 November 2017
SKS.M. Kibunja
801 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu merged two lawsuits over the same piece of land so ownership and possession disputes could be decided together in one hearing.

What this practically means

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Executive summary

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By a notice of motion dated 24th June 2016, James Odongo Sunga, the plaintiff in this suit against Gilbert Apiyo Orengo, sought consolidation of Kisumu ELC No. 70 of 2015 with this suit. He relied on grounds including that the parties were the same and that both suits concerned land parcel Kisumu/Korando/4610, deponing that he held beneficial interest in the land remaining after transferring part to Charles Odhiambo, the 2nd defendant in ELC No. 70 of 2015. The defendant opposed, asserting the plaintiff had shown no legal interest in the parcel. The court framed three issues: whether the parties were the same, whether the subject matter was the same, and whether consolidation was desirable. On the pleadings, the court found that this suit was brought by the registered proprietor seeking the defendant's eviction, with a counterclaim for a portion of the land under adverse possession. In ELC No. 70 of 2015 the current defendant is plaintiff against the current plaintiff and Charles Odhiambo, over the same parcel. A certificate of official search showed Charles Odhiambo became registered proprietor on 23rd April 2014 while this suit was pending. Holding consolidation necessary and reasonable so that ownership and possession issues could be decided together, the court allowed the motion, ordered consolidation of ELC No. 70 of 2015 with this suit, directed that costs of the motion be in the cause, and instructed the Deputy Registrar to attach the record of ELC No. 70 of 2015 before the next mention date for further directions.

Key legal issues

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Whether the two suits should be consolidated

Holding

Consolidation allowed because the parties overlap and both suits concern the same parcel of land, Kisumu/Korando/4610

Reasoning

The court compared the pleadings in both suits. The plaintiff in this suit is the registered proprietor seeking eviction of the defendant, who counterclaims under adverse possession. In ELC No. 70 of 2015 the current defendant is plaintiff against the current plaintiff and Charles Odhiambo. The subject matter in both is Kisumu/Korando/4610. The 2nd defendant in ELC No. 70 of 2015 obtained registration of the suit land on 23rd April 2014 while this suit was pending, making it necessary for ownership and possession issues to be determined together.

p. 2

Legal principles established

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  • Where a person obtains registration over suit land while a suit concerning that land is pending, consolidation of related suits is necessary and reasonable so that issues of ownership and possession are decided together

Court orders

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  1. 1.Kisumu ELC No. 70 of 2015 be and is hereby consolidated to this suit for hearing and determination
  2. 2.Costs of the notice of motion be in the cause
  3. 3.The Deputy Registrar to ensure the record for Kisumu ELC No. 70/2015 is attached to this file before the next mention date when further directions will be given
Jurisdiction invoked
Inherent powers of the Environment and Land Court to consolidate suits for hearing and determination (not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Odongo Sunga v Gilbert Apiyo Orengo [2017] KEELC 859 (KLR)", Case Analysis (2017). ELC suit (Kisumu) with Notice of Motion dated 24th June 2016; consolidation with Kisumu ELC No. 70 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/859/eng@2017-11-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.